Same-sex marriage and religious exemptions

As I wrote in my cover story for last week's Phoenix, the question of religious exemptions could play a central role in the looming same-sex marriage battle in the Rhode Island state senate.

Senate President M. Teresa Paiva Weed is opposed to gay nuptials. But if she decides to allow the bill through - perhaps in exchange for concessions from openly gay Speaker of the House Gordon Fox on other issues - she'll need some sort of political cover. And imposing strong religious exemptions - stronger than those outlined in the House bill that passed 51-19 last month - could do the trick.

Some of the players in the same-sex marriage debate - Paiva Weed included - have said they want to review the religious exemptions put in place by other states. I decided to take a peek, myself, at the exemptions in three nearby states - Maine, New Hampshire, and New York.

The Maine exemption, included in a same-sex marriage law approved by voters in November, is the most limited in scope:

This chapter does not require any member of the clergy to perform or any church, religious denomination or other religious institution to host any marriage in violation of the religious beliefs of that member of the clergy, church, religious denomination or other religious institution. The refusal to perform or host a marriage under this subsection cannot be the basis for a lawsuit or liability and does not affect the tax-exempt status of the church, religious denomination or other religious institution.

The New Hampshire and New York laws, both approved by legislators, include these basic protections. But they go further.

The New Hampshire law, for instance, protects not just "religious organization[s], association[s], or societ[ies]," but any nonprofit institutions (think schools and hospitals) "operated, supervised, or controlled by or in conjunction with" said groups. And the law forbids the state from penalizing any of these organizations for their refusal to provide buildings or services for gay nuptials ceremonies. That means the state can't, say, withhold funds for social welfare programs run by the institutions.

The New Hampshire law also states that any religiously affiliated "fraternal benefit society" - presumably the Knights of Columbus and similar groups - will retain control over who it admits and can't be required to provide insurance benefits to anyone (presumably the gay spouse of an employee).

In the New York senate, a religious exemption similar to New Hampshire's - forbidding the state from penalizing religious organizations that refuse to accomodate same-sex marriage ceremonies - was crucial to final passage.

There are some parallels between the Rhode Island House bill and the New York and New Hampshire laws. The House bill provides basic protections for churches and religious figures who refuse to solemnize same-sex marriages. And it forbids the state to punish them. But it does not extend protections to nonprofit entities associated with churches, as the New Hampshire law does. Extending those protections would be one way to beef up the religious exemption in the Rhode Island law.

But the state could go even further if it adopts language attached to Rhode Island's civil unions law of 2011. Known as the Corvese Amendment after the representative who penned it, this provision holds that churches and religiously affiliated organizations can refuse to provide accomodations for a same-sex marriage ceremony. But it also says they can consider gay nuptials invalid. In other words, they can refuse benefits to the gay and lesbian spouses of their employees. It's the New Hampshire exemption for fraternal benefit societies on steroids - encompassing a much wider swath of religiously affiliated institutions.

The Corvese amendment is anathema to same-sex marriage supporters. And if similar language is attached to the gay nuptials bill this spring, same-sex marriage advocates will surely complain that it goes father than any religious exemption in the country.

But that sort of rhetoric would, undoubtedly, be sweet music to Paiva Weed and other senators looking for political cover on a tough vote. And if it took a Corvese amendment to get the bill through the senate, well, gay marriage supporters might be willing to swallow it.